Opinion
C. A. 1:20-3595-JD-SVH
02-01-2022
Gina S., [1] Plaintiff, v. Kilolo Kijakazi, [2] Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge.
This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) and § i383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying Claimant's claim for Disability Insurance Benefits (“DIB”). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be affirmed.
I. Relevant Background
A. Procedural History
On August 9, 2018, Matthew F. (“Claimant”) filed an application for DIB in which he alleged his disability began on May 2, 2016. Tr. at 90, 15558. His application was denied initially and upon reconsideration. Tr. at 10407, 109-13. On September 26, 2019, Claimant had a hearing before Administrative Law Judge (“ALJ”) Ethan Chase. Tr. at 67-79 (Hr'g Tr.). The ALJ issued a partially favorable decision on October 30, 2019, finding that Claimant was disabled within the meaning of the Act from May 2, 2016, through November 13, 2017, but that his disability ended on November 14, 2017. Tr. at 29-48. Subsequently, the Appeals Council denied Claimant's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-7. Thereafter, Claimant brought this action seeking judicial review of the Commissioner's decision in a complaint filed on October 13, 2020. [ECF No. 1].
On August 10, 2021, counsel filed a motion to substitute Plaintiff for Claimant, who died on December 5, 2020. [ECF No. 21]. The Commissioner filed a response on August 25, 2021, indicating she did not object to the substitution. [ECF No. 23]. On August 26, 2021, the undersigned issued an order granting the motion and substituting Plaintiff, Claimant's surviving spouse, as the proper party pursuant to Fed.R.Civ.P. 25(a).
B. Claimant's Background and Medical History
1. Background
Claimant was 48 years old at the time of the hearing. See Tr. at 70 (indicating hearing date of September 26, 2019), 103 (reflecting Claimant's date of birth as December 4, 1970). He successfully completed the general educational development (“GED”) tests, earning a high school equivalency certificate. Tr. at 170. His past relevant work (“PRW”) was as a carpenter, a solar energy system installer, and a labor crew supervisor. Tr. at 77-78. He alleged he had been unable to work since May 2, 2016. Tr. at 155.
2. Medical History a. Evidence Before ALJ
Claimant was hospitalized at Medical University of South Carolina Hospital from May 2 through May 30, 2016, after sustaining a 35-foot fall from a roof. Tr. at 282. He was initially assessed as having L4-5 transverse process fractures, a right displaced acetabulum fracture, right superior and inferior pubic rami fractures with diastasis of pubic symphysis, a right sacral ala fracture, a small pseudoaneurysm versus contrast extravasation in the extraperitoneal space, and an incidental right upper lung nodule. Tr. at 478. Orthopedic surgeon Kristoff Reid, M.D. (“Dr. Reid”), performed surgical open reduction and internal fixation (“ORIF”) of the acetabulum/pelvis and ORIF of the humeral shaft fracture. Tr. at 318-19. Claimant was transferred to a room on a regular floor following surgery, but was transferred back to the intensive care unit on May 7, after developing Ogilvie syndrome. On May 17, a computed tomography angiogram showed likely aneurysms of the anterior communicating artery and junction of the right posterior communicating artery. Tr. at 422. Claimant's L4-5 transverse process fractures were considered nonoperative. Tr. at 479. Claimant was discharged with home health services and instructions to follow up with orthopedic surgery in two weeks for fractures to his right upper and lower extremities, neurosurgery in one year for aneurysms, and a pulmonologist in six to 12 months for the pulmonary nodule. Tr. at 479-80. He was partially weightbearing with his right upper extremity and touchdown weightbearing with his right lower extremity with assistance or device. Tr. at 480.
On June 27, 2016, Claimant reported his bowel function had returned to normal and he was no longer on a bowel regimen. Tr. at 272. Physician assistant Michael Craig Mostoller (“PA Mostoller”) noted normal findings as to Claimant's abdomen and a healing incision without signs of infection. Id. He indicated Ogilvie syndrome had resolved and instructed Claimant to follow up with Dr. Reid. Id.
On July 7, 2016, Claimant reported bearing weight as tolerated and taking nonsteroidal anti-inflammatory drugs (“NSAIDs”) for pain relief. Tr. at 271. He denied using an assistive device and continued to endorse right shoulder pain and weakness, some diminished sensation, and ambulation with a limp. Id. He denied numbness and paresthesia. Id. He reported he had initially received physical therapy through home health, but it was discontinued. Id. He complained of continued testicular pain, but noted the swelling had improved. Id. Dr. Reid observed tenderness-to-palpation (“TTP”) at the mid-shaft of Claimant's right humerus, diminished sensation to light touch over the axillary and musculocutaneous distribution of the right upper extremity, 1/5 strength with right shoulder abduction, 2/5 strength to the right biceps, 4/5 strength to right wrist flexion, and 3/5 strength to the right triceps. Id. He noted otherwise normal findings as to Claimant's right upper and lower extremities. Id. X-rays showed callus formation about the fracture site of the humerus, well-positioned hardware with no evidence of failure, and minimal interval healing of the pelvic fracture. Id. Dr. Reid indicated Claimant was noncompliant with weightbearing status and had been lost to follow up since his surgery. Id. He instructed Claimant to stop taking NSAIDs, prescribed Tramadol, and indicated he should take Tylenol as needed. Tr. at 272. He advised weightbearing as tolerated with the right upper extremity and only touchdown weightbearing with the right lower extremity. Id. He referred Claimant to physical therapy. Id.
On August 4, 2016, Dr. Reid noted diminished sensation to light touch over the axillary and musculocutaneous distribution of the right upper extremity, but no other abnormalities on exam. Tr. at 270. He indicated x-rays showed maturation of callus formation about the fracture site of the humerus, well-positioned hardware with no evidence of failure, and interval healing of the pelvic fracture. Id. He instructed Claimant to bear weight as tolerated on his right upper and lower extremities and to follow up in 12 weeks. Id.
Claimant complained of dull right testicular pain with intermittent shooting pains on August 12, 2016. Tr. at 268. He reported fair short-term relief with Tramadol and two weeks of short-term relief with Gabapentin 400 mg. Id. Nurse practitioner Joe Paul Turner (“NP Turner”) observed mild edema to the right of the scrotum, right testicular tenderness, and thick and tender right epididymis with tenderness extending along the spermatic cord to the right inguinal area. Tr. at 269. He reviewed pelvic imaging and discussed pelvic anatomy, noting the location of metal and its proximity to the inguinal canal. Id. He increased Claimant's Gabapentin dose and ordered a scrotal ultrasound. Id.
Claimant rated his testicular pain as a seven and reported minimal improvement with 1800 mg of Gabapentin on September 23, 2016. Tr. at 266. NP Turner noted testicular tenderness, but otherwise normal findings on exam. Tr. at 267. He discussed with Claimant the option of a cord block with denervation, and Claimant agreed to discuss it with his workers' compensation case manager. Id.
On October 3, 2016, Claimant presented to Michael Gabriel Hillegass, III, M.D. (“Dr. Hillegass”), with a complaint of testicular pain. Tr. at 264. He described the pain as constant and sharp, indicated it had persisted since May 2, and rated it as an eight at worst and a seven at best. Id. Dr. Hillegass observed TTP over the anterior superior iliac spine (“ASIS”) and along the incision with hypoesthesia along the inguinal crease. Id. He noted palpation around the right ASIS reproduced pain in Claimant's right testicle. Id. He also documented groin tenderness and paresthesia to light touch and palpation. Id. He indicated a testicular ultrasound had been normal, aside from a left-sided varicocele. Id. He discontinued Gabapentin and prescribed Lyrica 75 mg twice a day and Amitriptyline 25-50 mg. Tr. at 266. He assessed right ilioinguinal neuralgia and instructed Claimant to return for an ultrasound-guided ilioinguinal nerve block. Id.
Claimant reported difficulty attending outpatient physical therapy during a visit with Dr. Reid on November 10, 2016. Tr. at 263. He indicated he had been able to use his arm fairly well, despite its aching. Id. Dr. Reid observed sensation diminished to light touch over the axillary and musculocutaneous distribution of the right upper extremity, shoulder flexion to 110 degrees, and abduction to 90 degrees. Id. He indicated Claimant's incisions were well-healed. Id. He noted Claimant had TTP over the ASIS with reproduction of pain to the right testicle. Id. He reviewed x-rays that showed callus formation about the fracture site of the humerus with well-positioned hardware and interval healing of the pelvic fracture. Tr. at 264. He felt the humerus was “well on the way to healing.” Id. Dr. Reid instructed Claimant to bear weight as tolerated on the right upper and lower extremities and to follow up in six weeks. Id.
On December 22, 2016, Dr. Reid noted forward flexion to 110 degrees, abduction to 90 degrees, mild TTP over the fracture site, no significant edema, and neurovascularly-intact right upper extremity. Tr. at 261. He observed Claimant to demonstrate 4/5 quad strength in his bilateral lower extremities, no edema, and mild groin pain with internal and external rotation of the right hip. Id. He instructed Claimant to continue to bear weight as tolerated, quit smoking, continue use of a flexionator for range of motion (“ROM”) of the right shoulder, start vitamin D and TUMS for bone health, work on quad strengthening in his bilateral lower extremities, and use ibuprofen as needed. Id. He indicated he would initiate a bone stimulator for delayed union of the right humerus and referred Claimant to his primary care physician for management of hypertension. Id.
On December 28, 2016, Claimant complained of testicular pain. Tr. at 259. NP Turner noted right testicular and inguinal tenderness. Tr. at 260. He discussed options for surgical or chemical denervation if a pain injection was successful and chronic pain management control if it was not. Id. He prescribed Viagra. Id.
Claimant presented to Michael R. Smith, M.D. (“Dr. Smith”), for treatment of hypertension on March 20, 2017. Tr. at 226. He denied other complaints. Id. Dr. Smith conducted a limited exam and noted no abnormalities, aside from elevated blood pressure at 158/106 mmHg. Id. He assessed hypertension and prescribed Zestoretic 25-20 mg. Id.
On March 30, 2017, Claimant reported he had reduced his cigarette use to two a day and has used the flexionator until he returned it the prior day. Tr. at 259. He indicated injections for testicular pain had only provided temporary relief. Id. He noted his arm was feeling better and he was taking blood pressure medication. Id. Dr. Reid observed Claimant's right upper extremity to be neurovascularly-intact and to demonstrate forward flexion to 135 degrees and abduction to 100 degrees. Id. He indicated Claimant was mildly tender over the fracture site, but had no significant distal edema. Id. He noted 4/5 quad strength in the bilateral lower extremities, no edema, and mild groin pain with internal and external rotation of the right hip. Id. He advised Claimant to bear weight as tolerated, work on smoking cessation, and follow up in three months. Id.
On March 31, 2017, Claimant complained of right testicular trauma and pain. Tr. at 257. NP Turner noted tenderness in Claimant's right testicle and inguinal area. Tr. at 258. He discussed a surgical option with Claimant and arranged for him to follow up with urologist Ross A. Rames, M.D. (“Dr. Rames”). Id.
Claimant presented to Dr. Rames for evaluation of right testicular trauma and pain on April 21, 2017. Tr. at 255. He described sharp, shooting pain in his right testicle since his fall. Id. He indicated his pain failed to respond to Lyrica and Gabapentin, but was helped somewhat by pain medication. Id. He endorsed voiding symptoms and nocturia every 30 to 45 minutes. Id. Dr. Rames noted tenderness in Claimant's right testicle and inguinal area. Tr. at 257. He indicated if Claimant had no issues with his urethra, they could consider orchiectomy with prosthesis. Id.
On May 26, 2017, Dr. Rames noted tenderness in Claimant's right testicle and inguinal area. Tr. at 254. He reviewed results of a cystoscopy that showed a normal prostate and urethra, a flat urinary flow curve, and retained urine. Tr. at 254-55. He noted Claimant's voiding issues were bothersome, but his testicle pain was disabling. Tr. at 255. He planned to proceed with orchiectomy with prosthesis. Id.
On June 29, 2017, Dr. Reid noted Claimant was walking with a slight limp. Tr. at 252. He indicated Claimant's right upper extremity was neurovascularly-intact; he had forward flexion and abduction to 135 degrees; he had mild TTP over the fracture site; and he demonstrated no significant edema distally. Id. He observed 4/5 quad strength in Claimant's bilateral lower extremities, no edema, and mild groin pain with internal and external rotation of the right hip. Id. He stated x-rays showed interval healing of the humeral shaft. Id. He instructed Claimant to continue weightbearing as tolerated and to quit smoking for bone and overall health. Id. He indicated Claimant should follow up as needed. Id.
Claimant presented to NP Turner for a preoperative visit on August 10, 2017. Tr. at 246. NP Turner recorded normal findings on exam, aside from elevated blood pressure at 148/94 mmHg. Tr. at 248. He obtained Claimant's consent to surgery and provided preoperative instructions. Id.
On August 15, 2017, Dr. Rames performed orchiectomy with removal of Claimant's right testicle and implantation of a prosthesis. Tr. at 244-46.
Claimant complained of difficulty urinating and a rash on August 30, 2017. Tr. at 239. NP Turner observed raised erythema with wheals on Claimant's arms and across his abdomen. Tr. at 240. He indicated Claimant was experiencing an anaphylactic reaction after having used his wife's Macrobid and warned him against taking the medication again. Tr. at 24041. He prescribed a Solumedrol Dosepak and Benadryl 25 mg, every six hours. Tr. at 241.
On September 8, 2017, Claimant indicated his voiding issues had resolved, his pain was minimal, and he was taking less than one Lortab per day. Tr. at 238. Dr. Rames noted Claimant's right inguinal incision was healing well with minimal erythema and his testicular prosthesis was in place with only mild scrotal edema. Tr. at 239. He indicated Claimant was ambulating independently. Id. He authorized Claimant to resume full activity in two weeks and advised him to follow up as needed. Id.
Claimant followed up with Dr. Smith for blood pressure and pain management on November 14, 2017. Tr. at 224. He reported chronic back pain and requested Oxycodone 10 mg be refilled. Id. Dr. Smith noted the following on exam: no clubbing, cyanosis, or edema of the extremities; 5/5 bilateral upper and lower extremity strength; intact sensation throughout; normal gait; symmetric bilateral deep tendon reflexes; paraspinal muscle spasm in the lumbar region; TTP over the bilateral lower lumbar region; decreased bending/anterior flexion of the lower back secondary to pain; and negative straight-leg raising (“SLR”) bilaterally. Id. He assessed benign essential hypertension and low back pain, refilled Zestoretic 12.5-10 mg for hypertension, and indicated he would refer Claimant to a pain management specialist. Id.
On October 8, 2018, x-rays of Claimant's right hip showed mild acetabular spurring consistent with early degenerative disease and cortical irregularity in the right ischial tuberosity, but no acute findings. Tr. at 1088. X-rays of Claimant's pelvis showed plates and screws along the right iliac bone, symphysis pubis, and right iliac crest, but no acute findings. Tr. at 1089. X-rays of Claimant's right shoulder showed metallic fixation hardware in the proximal humerus, but no acute findings. Tr. at 1090.
Claimant presented to Sanjay Kumar, M.D. (“Dr. Kumar”), for a vocational rehabilitation exam on October 9, 2018. Tr. at 1092-94. He complained of pain in his right hip. Id. Dr. Kumar observed 5/5 motor strength in Claimant's bilateral upper and lower extremities, 2+ deep tendon reflexes, no cyanosis or edema of the extremities, no difficulty getting on or off the exam table, arthritic gait, no use of an assistive device, normal upper extremity ROM with normal bilateral abduction and adduction, right hip flexion to 90 degrees, no muscle atrophy, normal flexion and extension of the left hip, no effusion, no swelling, and no deformity. Tr. at 1093-94. He assessed essential hypertension and indicated Claimant should continue Lisinopril-Hydrochlorothiazide 10-12.5 mg. Tr. at 1094. Dr. Kumar wrote the following:
Patient will have difficulty lifting[, ] carrying[, ] pushing[, ] and pulling. He is capable of sitting. He will have difficulty standing or walking for any long distance. Patient is capable of climbing. He will have difficulty stooping[, ] bending[, ] balancing[, ] crawling[, ] kneeling[, and] crouching. Patient has normal fine motor skills. He has normal overhead and forward reaching. He has no vision and hearing [or] speech impairment. He is capable of tolerating environmental exposures.Id.
On October 16, 2018, state agency medical consultant Christine Thompson, M.D. (“Dr. Thompson”), reviewed the record and assessed Claimant's physical residual functional capacity (“RFC”) as follows: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for a total of four hours; sit for a total of about six hours in an eight-hour workday; occasionally climb ladders, ropes, and scaffolds; and frequently kneel, crawl, and climb ramps and stairs. Tr. at 8587.
On February 3, 2019, state agency medical consultant Clarice BellStrayhorn, M.D. (“Dr. Bell-Strayhorn”), reviewed the record and assessed the following physical RFC: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for a total of four hours; sit for a total of about six hours in an eight-hour workday; frequently balance, stoop, kneel, crouch, and climb ramps and stairs; occasionally crawl and climb ladders, ropes, or scaffolds; and avoid concentrated exposure to extreme cold, vibration, and hazards. Tr. at 97-100.
b. Evidence Presented to Appeals Council
Claimant presented to plastic surgeon Peter C. de Vito, M.D. (“Dr. de Vito”), for a consultation on March 5, 2018. Tr. at 64. Dr. de Vito recommended that scar reconstruction be deferred until after Claimant's providers determined whether the scars would have to be utilized to revisit the retained metal stabilization devices. Id. He assessed a 40% impairment rating to Claimant's skin. Tr. at 66.
Claimant presented to spinal surgeon Steven C. Poletti, M.D. (“Dr. Poletti”), for an evaluation on March 6, 2018. Tr. at 61-63. He described pain in his back, buttocks, right groin, and right proximal arm. Tr. at 61. Dr. Poletti noted the following on physical exam: full flexion and extension of the right elbow; some dysesthesia into the right upper and lower arm; pain with flexion and extension of the spine; pain to palpation over the right sacroiliac region and with figure-of-four maneuvers in the right hip and leg; and limited internal and external rotation of the right hip. Id. His impressions were: (1) multi-trauma with right radial fracture with persistent sensory deficit due to probable radial nerve irritation; (2) history of multiple fractures to the pelvis requiring surgical intervention; (3) transverse process fracture on the right at ¶ 4-5; (4) history of multiple rib fractures; and (5) history of orchiectomy due to neuropathic pain. Tr. at 62. He assessed a five percent impairment rating to Claimant's right upper extremity due to mild sensory deficit and minor loss of shoulder motion. Id. He assessed a 25% whole-person impairment rating for pelvic injuries. Id. He assessed an additional eight percent wholeperson impairment rating due to transverse process fractures to the lumbar spine. Id. He estimated Claimant had an additional 10% whole-person impairment rating based on inguinal nerve injury requiring testicular removal, but indicated he would ultimately leave this assessment up to Dr. Rames. Id. Dr. Poletti wrote the following:
I do believe this man is totally and permanently disabled. He is frankly lucky that he didn't die in the fall or suffer a spinal injury that resulted in paralysis. He is going to require hip replacement in the future, and he will have ongoing issues as it relates to his low back. He requires ongoing pain management.Id. He also wrote: “I don't think this man can work. I think again he is totally and permanently disabled. He cannot stand for extended periods of time, do any kind of prolonged sitting, bending, twisting, pushing, or pulling, and is restricted from any kind of lifting more than 15 to 20 pounds.” Tr. at 63. He indicated he held his opinion to a reasonable degree of medical certainty. Id.
On March 19, 2018, vocational consultant Jean R. Hutchinson, M.Ed., CRC, CVE (“Ms. Hutchinson”), provided an employability-evaluation report based on a March 5, 2018 interview with Claimant and a review of his educational background, work history, and medical records. Tr. at 54-60.
Claimant reported continued pain in his right hip, right shoulder and arm to the elbow, lower back, and testicle that was constant, varied in intensity, and worsened with cold temperatures and any activity. Tr. at 55-56. He endorsed tingling in his hands and feet and frequent headaches. Tr. at 56. Ms. Hutchinson opined Claimant was unable to perform the required tasks of his PRW and did not have transferable skills to other work within his RFC. Tr. at 59. She wrote:
I am of the opinion that Mr. F[] is not able to engage in an eighthour workday in a substantial number of jobs and cannot perform work tasks on a sustained basis. His impairments prevent him from making an adjustment to any work that exists in significant numbers in the national economy. It is therefore concluded that Mr. F[] is and remains unemployable. He is unable to compete on the open job market and is unable to perform substantial gainful work activity.Tr. at 59-60.
On March 26, 2018, Claimant presented to orthopedic surgeon Bright McConnell, III, M.D. (“Dr. McConnell”), for an independent medical evaluation. Tr. at 49-53. He reported pain in his right arm and shoulder, particularly in the upper brachium. Tr. at 50. He described persistence of pain at night, weakness when lifting horizontally or overhead, and a tingling sensation down the volar aspect of his right forearm. Id. He also endorsed pain deep in his groin and in his pelvic region that was exacerbated by prolonged standing, walking, and squatting. Id. He indicated he was taking over-the-counter analgesics for pain control, as prescription pain medications were no longer prescribed. Id.
Dr. McConnell observed the following on physical exam: minimal antalgic gait; straight spine; level pelvis; no leg-length discrepancy; hip flexion to 100 degrees; internal rotation of the right hip to 15 degrees and left hip to 30 degrees; hip flexion to 100 degrees in the supine position; positive hip impingement test; 5/5 lower extremity strength; well-healed incision; negative SLR; no distal neurosensory deficit; forward flexion of the right shoulder to 150 degrees; external rotation of the right shoulder to 60 degrees; internal rotation of the right shoulder to the L2 level; 4/5 resisted flexion of the right humerus; 4+/5 resisted abduction of the right humerus; full and painless ROM of the right elbow; intact distal function of right biceps, triceps, and intrinsic function; some residual hypoesthesia in the medial antebrachial cutaneous nerve distribution; and intact function of medial, ulnar, and radial nerves. Tr. at 51-52. He reviewed contemporaneous x-rays that showed well- positioned hardware, no evidence of loosening, and normal findings. Tr. at 52.
Dr. McConnell considered Claimant to be at maximum medical improvement. Id. He assessed a 15% impairment rating to Claimant's right upper extremity and a 25% impairment rating to his right shoulder based on reduced shoulder ROM in flexion, abduction, and internal and external rotation and loss of strength in flexion and abduction. Id. He stated Claimant “should be withheld from activities, which would require any type of repetitious lifting, particularly horizontal or overhead with weights to exceed 5 to 10 pounds.” Tr. at 53. He assessed a 15% impairment rating to Claimant's right lower extremity and hip based on ROM loss in flexion, abduction, and internal rotation. Id. He stated Claimant “should avoid activities, which would require any type of prolonged standing and any repetitious kneeling, squatting, stooping, or climbing type activities.” Id.
C. The Administrative Proceedings
1. The Administrative Hearing a. Claimant's Testimony
At the hearing on September 26, 2019, Claimant testified he fell nearly 50 feet from a roof, crushing his pelvis and breaking his arm and back. Tr. at 71-72. He said he had two aneurysms that affected his vision, sometimes causing it to go black and other times causing him to see multiple images. Tr. at 72. He stated the symptoms occurred for three to five minutes a time, up to five or six times a day. Tr. at 73. He indicated the vision problems were accompanied by dizziness and sometimes preceded by sweating and tremors. Tr. at 74. He admitted he had experienced the symptoms for eight years, but said they became more frequent after his fall. Tr. at 75.
Claimant explained he was working as an installer for a solar panel company when he fell off the roof. Tr. at 72. He said he was hospitalized for a month. Tr. at 73. He admitted he had filed a workers' compensation claim and the insurance carrier had paid his medical bills. Id. However, he stated he no longer had the means to visit a doctor. Id.
Claimant admitted his fractures had healed, but testified he continued to be limited. Tr. at 75. He said he could not do a lot and indicated he would be in bed for three days after mowing his yard with a riding mower. Tr. at 75-76. He estimated he could stand for 15 to 20 minutes and lift about 30 pounds. Tr. at 76. He admitted he could walk without a cane. Id.
Claimant testified he had a deteriorating disc in his neck that sometimes prevented him from turning his head. Id. He denied any change as to his neck since his fall. Id.
b. Vocational Expert Testimony
Vocational Expert (“VE”) Dawn Bergeron reviewed the record and testified at the hearing. Tr. at 77-78. The VE categorized Claimant's PRW as a carpenter, Dictionary of Occupational Titles (“DOT”) No. 860.381-022, requiring medium exertion and a specific vocational preparation (“SVP”) of 7; a solar energy system installer, DOT No. 637-261-030, requiring heavy exertion and an SVP of 7; and a labor crew supervisor, DOT No. 899.131-010, requiring light exertion and an SVP of 8. Tr. at 77-78. The ALJ described a hypothetical individual of Claimant's vocational profile who could perform sedentary work with occasional postural functions; no climbing of ladders, ropes, or scaffolds; should avoid exposure to excessive vibration; and should avoid hazards and unprotected heights. Tr. at 78. The VE testified the hypothetical individual would be unable to perform Claimant's PRW. Id. The ALJ asked whether there were any other jobs the hypothetical person could perform. Id. The VE identified sedentary jobs with an SVP of 2 as an order clerk, DOT No. 209.567-014, a charge account clerk, DOT No. 205.367-014, and a document preparer, DOT No. 249.587-018, with approximately 18, 000, 15, 000, and 91, 000 positions available nationally, respectively. Id.
The ALJ provided a second hypothetical that modified the first to include a provision that the individual would be off-task for five to 10 minutes, approximately a half-dozen times, on an unpredictable basis throughout a typical workday. Id. He asked if the individual would be able to perform the jobs the VE identified. Id. The VE testified he would not. Id. The ALJ asked if there would be other jobs that the individual could perform. Id. The VE testified there would be no jobs. Id.
2. The ALJ's Findings
In his decision dated October 30, 2019, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through March 31, 2021.
2. The claimant has not engaged in substantial gainful activity since May 2, 2016, the date the claimant became disabled (20 CFR 404.1520(b), 404.1571 et seq.).
3. From May 2, 2016 through November 13, 2017, the period during which the claimant was under a disability, the claimant had the following severe impairments: multiple fractures status post motor vehicle accident (20 CFR 404.1520(c)).
4. From May 2, 2016 through November 13, 2017, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that, from May 2, 2016 through November 13, 2017, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except occasional postural activity but no climbing of ladders, ropes, and scaffolds; he must avoid excessive vibration, hazards, and unprotected heights; and he would be off-task 15 percent of the work day due to pain.
6. From May 2, 2016 through November 13, 2017, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was a younger individual age 45-49, on the established disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. The claimant's acquired job skills do not transfer to other occupations within the residual functional capacity defined above (20 CFR 404.1568).
10. From May 2, 2016 through November 13, 2017, considering the claimant's age, education, work experience, and residual functional capacity, there were no jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1560(c) and 404.1566).
11. The claimant was under a disability, as defined by the Social Security Act, from May 2, 2016 through November 13, 2017 (20 CFR 404.1520(g)).
12. The claimant has not developed any new impairment or impairments since November 14, 2017, the date the claimant's disability ended. Thus, the claimant's current severe impairment is the same as that presented from May 2, 2016 through November 13, 2017.
13. Beginning November 14, 2017, the claimant has not had an impairment or combination of impairments that meets or
medically equals the severity of one of the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1594(f)(2)).
14. Medical improvement occurred as of November 14, 2017, the date the claimant's disability ended (20 CFR 404.1594(b)(1)).
15. The medical improvement that has occurred is related to the ability to work because there has been an increase in the claimant's residual functional capacity (20 CFR 404.1594(b)(4)(i)).
16. After careful consideration of the entire record, the undersigned finds that, beginning November 14, 2017, the claimant has had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except occasional postural activity but no climbing of ladders, ropes, and scaffolds; and he must avoid excessive vibration, hazards, and unprotected heights.
17. The claimant is unable to perform past relevant work (20 CFR 404.1565).
18. The claimant's age category has not changed since November 14, 2017 (20 CFR 404.1563).
19. The claimant's education level has not changed (20 CFR 404.1564).
20. Beginning November 14, 2017, transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
21. Beginning November 14, 2017, considering the claimant's age, education, work experience, and residual functional capacity, there have been jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1560(c) and 404.1566).
22. The claimant's disability ended November 14, 2017, and the claimant has not become disabled again since that date (20 CFR 404.1494(f)(8)).Tr. at 35-45.
II. Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1) the Appeals Council erred in declining to grant review or remand the case to the ALJ for consideration of new and material evidence; and
2) the ALJ failed to evaluate Claimant's subjective allegations as required pursuant to the applicable regulations.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in his decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for at least 12 consecutive months.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or are “at least equal in severity and duration to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner [] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vtek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
1. Evidence Submitted to Appeals Council
The Appeals Council issued a notice denying Claimant's request for review on September 11, 2020. Tr. at 1-7. The notice addresses additional evidence as follows:
You submitted notes from Jean R. Hutchinson M.Ed. CRC, CVE, Vocational Consultant, dated March 19, 2018 (7 pages), Bright McConnell III, MD, Charleston Sports Medicine, dated March 26, 2018 (5 pages), Steven C. Poletti, MD, Southeastern Spine Institute, dated March 6, 2018 (3 pages), and Peter C. DeVito, MD, FACS, Plastic and Reconstructive Surgery, dated March 5, 2018 through March 22, 2018 (3 pages). We find this evidence does not show a reasonable probability that it would change the outcome of the decision. We did not exhibit this evidence.Tr. at 2.
Plaintiff argues the Appeals Council erred in declining to remand the case to the ALJ for consideration of new evidence. [ECF No. 19 at 7]. She maintains the Appeals Council made no determination as to whether there was good cause for the late submission of the evidence, but declined to exhibit it, as there was no probability that it would have changed the ALJ's decision. Id. at 8. She contends the evidence supported a finding that Claimant could not maintain full time employment. Id. at 9.
The Commissioner argues the Appeals Council properly evaluated the new evidence and concluded it did not provide a basis for remand under the applicable regulations. [ECF No. 22 at 9]. She maintains Plaintiff has not established that the evidence was new, was material, showed a reasonable probability of changing the outcome of the hearing decision, and that there was good cause for the failure to submit the evidence to the ALJ. Id. at 9-11. She contends the evidence was not new, as it was dated March 2018 and Claimant could have obtained it and submitted it to the ALJ. Id. at 12-13. She claims Plaintiff has not explained how the additional evidence would likely change the outcome of the ALJ's decision. Id. at 13. She maintains Plaintiff cannot establish good cause for the failure to submit the evidence to the ALJ. Id. at 14-15.
A claimant may request review from the Appeals Council if he is dissatisfied with an ALJ's decision. 20 C.F.R. § 404.967. “The Appeals Council may deny or dismiss the request for review, or it may grant the request and either issue a decision or remand the case to an administrative law judge.” Id. Pursuant to 20 C.F.R. § 404.970(a), the Appeals Council will grant a claimant's request for review if one of the following criteria are met:
(1) There appears to be an abuse of discretion by the [ALJ];
(2) There is an error of law;
(3) The action, findings, or conclusions in the hearing decision or dismissal order are not supported by substantial evidence;
(4) There is a broad policy or procedural issue that may affect the general public interest; or
(5) Subject to paragraph (b) of this section, the Appeals Council receives additional evidence that is new, material, and relates the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision.
The Appeals Council should only consider additional evidence if the claimant shows good cause for not informing the ALJ about or submitting the evidence prior to the hearing. 20 C.F.R. § 404.970(b). If the Appeals Council determines additional evidence the claimant submitted was not new, material, or related to the period on or before the hearing decision or that the claimant did not have good cause for failing to submit it prior to the hearing, it will send the claimant “a notice that explains why it did not accept the additional evidence” and will advise him of his right to file a new application.” 20 C.F.R. § 404.970(c).
The Commissioner correctly asserts that Plaintiff made no argument that good cause supported the failure to inform the ALJ about or submit the evidence prior to the hearing. However, the undersigned notes the Appeals Council did not reject the evidence as being submitted without good cause. See Tr. at 2. The Appeals Council did not indicate in the notice that Claimant had failed to show good cause for missing the deadline to submit evidence, but explicitly found the evidence “d[id] not show a reasonable probability that it would change the outcome of the decision.” Tr. at 2. The Fourth Circuit has explained that evidence is material “if there is a reasonable possibility that [it] would have changed the outcome.” Wilkins v. Sec'y, Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991). Thus, the Appeals Council rejected the evidence because it found it was not material-not because Claimant failed to show good cause for his failure to submit it earlier.
The undersigned recognizes that public policy concerns weigh against consideration of evidence submitted to the Appeals Council that was available to the claimant prior to the ALJ's decision, as claimants and their representatives should not be incentivized on appeal for their failure to complete the record prior to a hearing. However, the court is not permitted to accept counsel's post-hoc justifications where they are not supported in the record. See Arakas v. Commissioner, Social Security Administration, 983 F.3d 83 (4th Cir. 2020) (“The Commissioner seeks to frame the ALJ's statement as an attempt to resolve the alleged inconsistency between Dr. Harper's assertion that the MRI showed evidence of chronic muscle spasm and the fact that the radiologist who read the MRI did not note such evidence. We reject this argument as a meritless post-hoc justification.”) (citing Radford v. Colvin, 734 F.3d 288, 294 (4th Cir. 2013) (rejecting the Commissioner's attempt to justify the ALJ's denial of disability benefits as a post-hoc rationalization); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156 (1962) (“[C]ourts may not accept appellate council's post hoc rationalizations for agency action.”) (citing SEC v. Chenery Corp., 332 U.S. 194 (1947)); Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999) (applying Burlington Truck in a Social Security disability case)).
“[N]othing in the Social Security Act or regulations promulgated pursuant to it requires that the Appeals Council explain its rationale for denying review.” Meyer v. Astrue, 662 F.3d 700, 705 (4th Cir. 2011). In evaluating whether the Appeals Council erred in declining to grant review or remand a claim for an ALJ's further consideration, the court looks to the ALJ's decision to determine whether it continues to be supported by substantial evidence, despite the additional evidence the Appeals Council deemed immaterial. See Meyer, 662 F.3d at 707.
The undersigned has considered whether substantial evidence continues to support the ALJ's findings that medical improvement occurred beginning November 14, 2017, and that Claimant had the RFC to perform sedentary work with occasional postural functions and no climbing of ladders, ropes, or scaffolds and avoidance of excessive vibration, hazards, and unprotected heights, with the additional evidence. In reaching his conclusions, the ALJ relied on exams reflecting paraspinal muscle spasm in the lumbar region, TTP over the lower lumbar region, decreased bending/anterior flexion of the lower back secondary to pain, negative bilateral SLR, normal strength in the bilateral upper and lower extremities, full ROM of the upper extremities, flexion of the right hip to 90 degrees, intact sensation throughout, symmetric bilateral deep tendon reflexes, normal flexion and extension of the left hip, arthritic gait without use of an ambulatory device, no musculoskeletal swelling, no musculoskeletal effusion, no musculoskeletal deformity, and ability to get on and off the exam table without difficulty; x-rays of his right hip, right shoulder, and pelvis that showed no acute findings; an October 2018 evaluation during which Claimant denied taking medication for pain; and Dr. Kumar's opinion. Tr. at 42-43.
Having compared the ALJ's conclusions and explanation to the additional evidence presented to the Appeals Council, the undersigned concludes that substantial evidence supports the Appeals Council's finding that the additional evidence was not material. Dr. de Vito's consultation note presented no reasonable likelihood of changing the ALJ's decision, as he noted no observations or functional limitations that run contrary to the ALJ's findings. See Tr. at 64-66. Ms. Hutchinson's employability evaluation report was also not reasonably likely to change the ALJ's decision because it was based on allegations the ALJ declined to accept and a more-restrictive RFC than he assessed. See Tr. at 59-60. Dr. McConnell's observations and conclusions were also unlikely to change the ALJ's decision because they were generally consistent with the objective findings, imaging reports, over-the-counter medication use, and functional limitations he cited in assessing Claimant's RFC and concluding he was no longer disabled beginning November 14, 2017. Compare Tr. at 42, with Tr. at 49-53.
Although Dr. Poletti observed some abnormalities on exam, his observations were generally consistent with those the ALJ cited from Dr. Smith's November 2017 and Dr. Kumar's October 2018 exams. Compare Tr. at 42, with Tr. at 61. Dr. Poletti's opinions that Claimant was “totally and permanently disabled” and could not do any prolonged sitting, Tr. at 62-63, conflict with the ALJ's RFC assessment for sedentary work and finding that Claimant's disability ceased on November 14, 2017. Despite these differences, Dr. Poletti's opinions were not reasonably likely to change the outcome of the decision, given the ALJ's explanation. Dr. Poletti relied on similar observations and imaging reports to reach conclusions that differed from those of Drs. Kumar and Bright, who emphasized that Claimant could not engage in prolonged standing, but imposed no restrictions on sitting. Like Drs. Kumar and Bright, Dr. Poletti was not a treating physician and provided only a one-time assessment. A comparison of the physical exams suggests Dr. Poletti's was not as thorough as those provided by Drs. Kumar and Bright. Compare Tr. at 1093-94 and 51-52, with Tr. at 61. Given the ALJ's finding that Dr. Kumar's opinion was persuasive, as supported by and consistent with the evidence, it does not seem likely he would have reached a different conclusion if he had reviewed Dr. Poletti's opinion prior to issuing his decision.
In light of the foregoing, the undersigned recommends the court find the Appeals Council did not err in declining to grant review or remand the case for the ALJ to consider the additional evidence.
2. Subjective Allegations
Plaintiff argues the ALJ erred in concluding Claimant's complaints were not supported after November 14, 2017, given “subjective reports of increased functioning, ” as the ALJ identified no such reports. [ECF No. 19 at 11]. She maintains the ALJ should have considered Claimant's testimony that he was unable to pursue additional medical treatment prior to discounting his testimony based on a “de-escalation in medical treatment.” Id.
The Commissioner argues substantial evidence supports the ALJ's evaluation of Claimant's subjective complaints. [ECF No. 22 at 15]. She maintains the ALJ considered Claimant's alleged symptoms, the objective medical evidence, the medical opinions, and the prior administrative medical findings. Id. at 16-17. She contends the ALJ relied on normal findings during a November 2017 exam, subsequent imaging studies, and normal findings on an October 2018 exam to support his decision. Id. at 17. She claims Claimant's inability to afford additional treatment was inconsequential, as the ALJ did not deny his claim based on a lack of treatment. Id. at 17-18.
“[A]n ALJ follows a two-step analysis when considering a claimant's subjective statements about impairments and symptoms.” Lewis v. Berryhill, 858 F.3d 858, 865-66 (4th Cir. 2017) (citing 20 C.F.R. § 404.1529(b), (c)). “First, the ALJ looks for objective medical evidence showing a condition that could reasonably produce the alleged symptoms.” Id. at 866 (citing 20 C.F.R. § 404.1529(b)). If the ALJ concludes the claimant's impairments could reasonably produce the alleged symptoms, he is required to proceed to the second step. Id. At the second step, the ALJ must “evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit [his] ability to perform basic work activities.” Id. (citing 20 C.F.R. § 404.1529(c)). He must “evaluate whether the [claimant's] statements are consistent with objective medical evidence and the other evidence.” SSR 16-3p, 2016 WL 1119029, at *6 (2016). His consideration of the claimant's symptoms cannot be “based solely on objective medical evidence unless that objective medical evidence supports a finding that the individual is disabled.” Id. at *4; see also Arakas, 983 F.3d at 98 (“We also reiterate the long-standing law in our circuit that disability claimants are entitled to rely exclusively on subjective evidence to prove the severity, persistence, and limiting effects of their symptoms.”).
In addition to medical evidence, ALJs are to consider other evidence as to the intensity, persistence, and limiting effects of a claimant's symptoms. SSR 16-3p, 2016 WL 1119029, at *5 (2016); 20 C.F.R. § 404.1529(c). “Other evidence that we will consider includes statements from the individual, medical sources, and any other sources that might have information about the individual's symptoms, including agency personnel, as well as the factors set forth in our regulations.” Id. ALJs must consider factors relevant to the claimant's symptoms, including evidence of daily activities; the location, duration, frequency, and intensity of pain or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of the claimant's medications; any measures the claimant uses or has used to relieve pain or other symptoms; and any other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(3). They are required to determine “whether there are any inconsistencies in the evidence and the extent to which there are any conflicts between [the claimant's] statements and the rest of the evidence.” 20 C.F.R. § 404.1529(c)(4).
The ALJ concluded Claimant's statements about the intensity, persistence, and limiting effects of his symptoms were “inconsistent with his subjective reports of increased functioning, objective medical evidence, and de-escalation in medical treatment beginning around November 14, 2017.” Id.
The ALJ's failure to fully credit Claimant's subjective allegations was not based solely on the objective medical evidence, but was based on a combination of Claimant's testimony, his providers' observations, imaging results, opinion evidence, and the fact that he was not taking prescribed medication. See SSR 16-3p, 2016 WL 1119029, at *5 (2016); 20 C.F.R. § 404.1529(c). The ALJ cited a November 14, 2017 treatment note, showing “the claimant had full strength of the upper and lower extremities, symmetric deep tendon reflexes, negative straight leg raising, and normal gait (Ex. 2F/4).” Id. He indicated Claimant's request for a refill of Oxycodone was met with an offer of a referral to pain management. Id. He referenced “[s]ubsequent medical imaging of the right hip, right shoulder, and pelvis” that “showed no acute findings (Ex. 4F).” Id. He noted Claimant was taking no prescription medication for pain when he presented for a vocational rehabilitation evaluation in October 2018. Id. He acknowledged Claimant's complaints of chronic back and right hip pain, but cited mostly normal exam findings, except for paraspinal muscle spasm in the lumbar region, TTP over the bilateral lower lumbar region, decreased bending/anterior flexion of the lower back secondary to pain, flexion of the right hip to 90 degrees, and arthritic gait. Id. He found Dr. Kumar's opinion persuasive. Tr. at 43.
Although Plaintiff argues the ALJ failed to cite the “subjective reports of increased functioning” he claimed supported his conclusion, her argument is refuted by review of the decision. The ALJ wrote: “The claimant testified that he has healed from his fractur[ed] bones . . . but he still has some limitations.” Tr. at 42. He further noted Claimant's testimony that he was “able to walk without a cane.” Id. Thus, the ALJ explicitly considered Claimant's testimony as to increased functioning.
The undersigned rejects Plaintiff's claim that the ALJ penalized Claimant for failing to obtain treatment he could not afford based on his notation of a de-escalation in medical treatment. A “claimant may not be penalized for failing to seek treatment [he] cannot afford; ‘it flies in the face of the Social Security Act to deny benefits to someone because he is too poor to obtain medical treatment that may help him.'” Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1985) (quoting Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984)). However, a de-escalation in medical treatment is not the same as a failure to seek treatment. A de-escalation in treatment reflects decreased frequency and intensity of treatment, which is supported by the record in this case. Claimant was initially hospitalized for four weeks, during which he underwent two surgical procedures, other interventions, and intensive therapy. Tr. at 479-80. He subsequently presented for follow-up appointments with several providers, but his visits decreased in frequency and his providers' interventions lessened over time. See generally Tr. at 23872. After Claimant met his treatment goals, his medical providers released him to follow up as needed. Tr. at 239, 252, 272. Thus, the ALJ's finding of a de-escalation in medical treatment is supported by the record. In addition, the ALJ recognized in his decision that Claimant had difficulty affording additional treatment. See Tr. at 38 (“After his fall, the claimant reported he received worker's compensation and his hospital bills were covered but he is not receiving any other medical treatment due to no insurance.”). Plaintiff has identified, and the undersigned has found, no indication within the ALJ's decision that he discounted Claimant's allegations based on a failure to obtain additional medical treatment.
In light of the foregoing, the undersigned recommends the court find substantial evidence supports the ALJ's consideration of Claimant's subjective allegations in accordance with the provisions of 20 C.F.R. § 404.1529 and SSR 16-3p.
III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the Commissioner, but to determine whether his decision is supported as a matter of fact and law. Based on the foregoing, the undersigned recommends the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).